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EFF Supports Senator Bingaman's Immunity Amendment: Congress Should Know What It is Immunizing

The schedule for the Senate's return on July 8 allows for three amendments to be introduced to the FISA Amendments Act, which in its current form would grant immunity from the law to phone companies who engaged in illegal spying. One amendment, from Senators Dodd and Leahy, would strip immunity from the bill altogether. A second, from Senator Specter [PDF], would would allow the court to deny immunity if it found that the government's surveillance activities were unconstitutional.

The current version of the Senate bill calls for an investigation into the President's warrantless wiretapping program by the Inspectors General of the Department of Justice and other US government intelligence agencies. The IG investigation, while no substitute for an independent court ruling, is likely to uncover some of the details of the program that the White House has been trying to suppress.

Unfortunately, the current bill puts the cart before the horse, by granting immunity from the law to phone companies before the investigation has even begun. If the Senate is resolved to pass legislation granting immunity, it it ought to at least know what conduct it's immunizing — It should give itself an opportunity to revisit the issue after it has the IG Report in hand.

That's where the Bingaman amendment comes in.

The Bingaman amendment would prevent Congress from granting immunity in the dark, as described in the press yesterday, by "stay[ing] pending cases against the telecoms and delay[ing] the effective date of any immunity provisions until 90 days after Congress received a report from the inspectors general of the intelligence agencies on the warrantless surveillance program". By placing a temporary hold on immunity and on the litigation until 90 days after the IG Report is submitted to Congress, the simple amendment would give Congress and the American people an opportunity to revisit the issue of telco immunity next year, in light of the audit's findings.

EFF has signed an open letter in support of the Bingaman Amendment [PDF] along with the ACLU and eleven other civil liberties organizations, and urges all members of the Senate who care about civil liberties and the rule of law to champion it. The amendment wouldn't cure all of the problems with the bill, and is no replacement for a strong no vote on final passage, but at this moment it looks to be the last best shot at saving the litigation against the telcos from an early death.

We especially hope that Senator Obama recognizes how important his leadership could be on this amendment.

It is an immeasurable tragedy that as July 4th approaches, Congress appears poised to pass a bill that would betray the spirit of 1776 by radically expanding the president's spying powers and granting immunity to the companies that colluded in his illegal surveillance program.

We hope that all Americans who care about this issue will celebrate the Fourth of July this year by demanding that their Senators uphold the rule of law by supporting the immunity amendments and, most importantly, voting NO on final passage of the FISA Amendments Act of 2008.

Updated June 30 2:40pm PT: An earlier version of this post mistakenly identified the amendment's cosponsor as Senator Carter. The actual cosponsor is Senator Casey.